United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. Tiscione United States Magistrate Judge
this Court is a cautionary tale in discovery management.
Plaintiffs' and Defendants' sloppy work has consumed
judicial resources with three motions to compel. Now,
discovery in this case has finally closed, and Plaintiffs
have asked this Court to sanction Defendants for delaying
discovery, for submitting misleading answers and documents to
discovery requests, and for failing to properly respond to
requests for admission. To remedy this, Plaintiffs have asked
that this Court grant reasonable attorneys' fees and deem
responses to requests for admission admitted. To support this
request, they invoke this Court's authority under 28
U.S.C. § 1927, Rules 26, 36, and 37 of the Federal Rules
of Civil Procedure, as well as this Court's inherent
reasons discussed below, this Court grants Plaintiffs'
motion in part. Defendants will pay for the costs and
attorneys' fees associated with the First and Third
motions to compel. Mr. Siegert will pay for their fees and
costs associated with the instant motion for sanctions.
Additionally, Plaintiffs have the option of re-deposing Myong
Ja Koo with the costs to be paid by Mr. Siegert, or of having
Mr. Siegert pay for their costs and fees associated with her
substantive claims in this case are straightforward.
Defendant Natural Tofu Restaurant Corp., which is owned by
Man Suh Koo and Myong Ja Koo, employed the Plaintiffs-Jin Dan
Wu, Soo Jin Lee, and Jung Hee Kim. Third Amended Compl.
¶¶ 17-19, 27, 37 (Dkt. No. 26). Plaintiffs allege
that during the course of their employment Defendants
violated various wage, recordkeeping, and notice requirements
of the New York Labor Law (“NYLL”) and Federal
Labor Standards Act (“FLSA”). Id.
¶¶ 67-94. Plaintiffs also allege that Defendants
violated the anti-age discrimination prohibitions contained
in the New York State Human Right's Law
(“NYSHRL”) and New York City Human Rights Law
(“NYCHRL”) by firing them in order to hire
younger employees. Id. ¶¶ 95-104.
substance of this dispute, however, is anything but
straightforward. In waves, Plaintiffs served multiple
discovery devices-two requests for production, two sets of
interrogatories, and nine sets of requests for admission
(“RFAs”)-on Defendants, leading to three separate
motions to compel. See Pls.' First Mot. to
Compel (Dkt. No. 31); Pls.' Second Mot. to Compel (Dkt.
No. 37); Pls.' Third Motion to Compel (Dkt. No. 41).
Plaintiffs moved for sanctions once during discovery
(see Dkt. No. 41) and with the instant motion they
have renewed their request now that discovery has closed.
See Pls.' Second Mot. for Sanctions (Dkt. No.
grievances in the instant motion can be grouped into the
following four categories: (1) Defendants delayed discovery
and forced Plaintiffs to file three motions to compel; (2)
Myong Ja Koo and her counsel failed to properly sign the
responses to RFAs; (3) Defendants produced monthly time
sheets and represented that those sheets were contemporaneous
records when in fact they were summaries produced after the
commencement of litigation; and (4) several of
Defendants' discovery responses were false.
The Motions to Compel.
The First Motion to Compel.
road to this motion began in July 2016, when counsel for the
parties, Mr. Siegert for Defendants and Mr. Lim for
Plaintiffs, first corresponded. See Dkt. No. 52 at
6. In a series of emails and letters expressing a mutual
desire to settle this matter, Mr. Lim asked for and Mr.
Siegert promised to provide payment records. Dkt. No. 52 at
6-11. On August 26, Mr. Lim again asked if the promised
records were forthcoming, as he hoped that he could avoid
drafting a formal request for production. Dkt. No. 52 at 11.
Apparently, Mr. Siegert did not provide a satisfactory
answer, as Plaintiffs served their first set of
interrogatories, request for production, and RFA on August
29. See Pls.' First Request for Produc. (Dkt.
No. 31-1); Plaintiffs' First Set of Interrogatories (Dkt.
No. 37-1); Plaintiffs' First RFA (Dkt. No. 37-4). They
then served a second RFA and request for production on
November 4. See Pls.' Second Request for Produc.
(Dkt. No. 31-2); Plaintiffs' Second RFA (Dkt. No. 37-5).
time, only two Defendants were in the case, Myong Ja Koo and
the corporation. See Dkt. No. 1 ¶¶ 19-32.
Plaintiffs did not specify whether the interrogatories and
requests for admission were directed to Seoul Garden or Myong
Ja Koo. See Dkt. Nos. 37-1, 37-4, 37-5.
Defendants responded to the interrogatories and both RFAs on
behalf of Seoul Garden but not on behalf of Myong Ja Koo.
See Dkt. No. 37 at 1-2. They never responded,
however, to the request for production, with the exception
that on August 31, 2016, Mr. Siegert emailed the previously
promised set of “payment records.” See
Dkt. No. 52 at 12. Defendants had thirty days to respond to
that first request (see Fed. R. Civ. P.
34(b)(2)(A)), meaning that the response was late as of
did not press the issue until December 8, 2016-two days after
the initial settlement conference-when they wrote a letter
asking for the late production. See Dkt. No. 31-3.
Defendants, however, did not comply. See Dkt. No. 33
meantime, Plaintiffs filed the Third Amended Complaint and
added the third Defendant-Man Suh Koo-on December 27, 2016.
See Dkt. No. 26 ¶¶ 36-45. Defendants
answered that complaint on January 31, 2017. Dkt. No. 29.
Defendants renewed their request for the production on
February 2 (Dkt No. 31-5 at 2). On February 16, the parties
participated in a second settlement conference, and
Plaintiffs' reiterated their request for the outstanding
documents. See Dkt. No. 31-6. Plaintiffs followed up
on the requests via phone and Defendants' counsel said
that he had not received a response from his clients. Dkt.
No. 31 at 2.
again followed up with an email on March 2. Dkt. No. 31-7 at
2. They received no reply, and so they placed a phone call to
Mr. Siegert on March 6. Dkt. No. 31 at 2. Mr. Siegert told
Plaintiffs to follow up in two days and so, on March 9,
Plaintiffs once again emailed Mr. Siegert. Dkt. No. 31-8 at
2. Again, having received no reply, Plaintiffs followed up by
phone on March 13 and were told that they would receive a
reply on March 15. Dkt. No. 31 at 2. Mr. Siegert eventually
responded on March 15. Dkt. No. 31-9 at 2. His response was
that Defendants possessed no other relevant documents.
response to this intransigence, Plaintiffs filed their First
Motion to Compel on March 18, 2017. See Dkt. No. 31.
Plaintiffs apparently did not take issue with the responses
to the interrogatories or first two RFAs, as they requested
no relief from this Court on either request at that time.
See Dkt. No. 31.
Court granted the First Motion to Compel in part, giving
Defendants until April 28, 2017 to produce responses to all
of Plaintiffs' outstanding discovery requests. Dkt. No.
35. Defendants complied. See Dkt. No. 37 at 1-2.
The Second Motion to Compel.
renewed their liberal use of requests for admission on March
27, 2017 when they served their third RFA. See
Plaintiffs' Third RFA (Dkt. No. 37-6). Like the previous
two RFAs, Plaintiffs' Third RFA did not specify the
recipient. Id. Defendants responded to that RFA on
April 29 on behalf of the corporation but not on behalf of
the other defendants, Myong Ja Koo and Man Su Koo.
See Dkt. 37 at 2.
16, 2017, Plaintiffs changed their strategy when they served
their fourth set of RFAs, which were directed to specific
defendants. See Dkt. No. 37-7 at 2, 13, 22.
Defendants accordingly submitted responses from each
defendant by May 26. See Dkt. No. 37-8, Dkt. No.
37-9, Dkt. No. 37-10, Dkt. No. 37-11.
however, were unsatisfied with the responses. On May 26,
Plaintiffs wrote to request that Defendants provide
“details supporting . . . denials” as well as the
details supporting a failure to admit or deny. Dkt. 37-12 at
2. Plaintiffs also indicated-for the first time-that they
expected Myong Ja Koo to reply to the interrogatories and
first three RFAs. Dkt. 37-12 at 1-2. On May 30, Defendants
wrote to dispute Plaintiffs' statement that responses to
RFAs must provide a “factual basis” for denials.
Dkt. No. 37-13. Plaintiffs replied that they disagreed and
gave Defendants until June 2 to comply with their requests.
Dkt. No. 37-3.
filed their Second Motion to Compel on June 7, 2017.
See Dkt. No. 37. In that motion, they asked this
Court: (1) to order Myong Ja Koo to reply to the
interrogatories; and (2) to order all three Defendants to
amend the responses to the RFAs. Dkt. No. 37 at 3. They also
indicated that they believed that Myong Ja Koo had admitted
to the first three RFAs by failing to provide a response.
Dkt. 37 at 2.
the hearing on the Second Motion to Compel, however, the
parties came to an amicable resolution and this court granted
the motion in full, giving Defendants until July 5, 2017 to
comply. Dkt. No. 40; Dkt. No. 41 at 1.
The Third Motion to Compel and First Motion for
however, the parties' understanding was not mutual. Mr.
Siegert believed that Plaintiffs' counsel, Kendal Sim,
had agreed to receive only an amended response from Myong Ja
Koo to the fourth RFA. Dkt. No. 43 at 2. Accordingly, Mr.
Siegert provided Myong Ja Koo's amended response to the
fourth RFA, but not a response from her to the
interrogatories or an amended response from the other two
defendants for the fourth RFA. Dkt. No. 41 at 2.
Mr. Sim and Mr. Siegert discussed this new deficiency over
the phone, another attorney for Plaintiffs, Sean Kwak,
emailed Mr. Siegert demanding that Defendants comply with
their requested relief. Dkt. No. 41 at 2. Mr. Kwak first
raised this issue with Mr. Siegert on July 6, and gave him
until July 10 to comply. Dkt. No. 41-2 at 2. Later that day,
Mr. Kwak emailed again and moved the deadline up to July 7.
Dkt. No. 41-3 at 2. As promised, Plaintiffs filed their Third
Motion to Compel on July 7, in which they also asked for
sanctions for “bad-faith with respect to . . .
discovery obligations.” Dkt. No. 41 at 2.
Court granted Plaintiffs' motion in part, ordering
Plaintiffs to specifically address their interrogatories and
RFAs and for Defendants to respond accordingly. See Dkt. No.
44. No sanctions were imposed at that time. Dkt. No. 44.
Myong Ja Koo's Deposition.
to the instant motion, Plaintiffs uncovered more
objectionable conduct in the course of depositions.
during her deposition, Myong Ja Koo indicated that she was
unfamiliar with the requests for admission and
interrogatories that she signed, and that she was unaware
that her signatures were made under the penalty of perjury.
See Dkt. No. 46-1 at 18:5-18, 20:12-15. She even
went as far as to say that she had never seen any document
related to the case (id. at 17:24-18:4) despite the
fact that she also admitted she had signed each of the RFAs
and the responses to the interrogatories (id. at
21:15-22:7). Plaintiffs promptly gave up on questioning Myong
Ja Koo, adjourning the deposition after a mere 34 minutes.
See id. at 1, 22.
appears that this occurred because Myong Ja Koo cannot read
English, so Mr. Siegert had her daughter, Patricia Koo, go
over the interrogatories and RFAs with her mother. Dkt. No.
47 at 5. Patricia Koo, for her part, insists that she did
review each of the questions with her mother. Dkt. No. 47 at
4-5. Either way, Defense counsel was not present during this
process, and so did not explain the legal meaning of terms in
those documents or the consequences of her signature on the
page. Dkt. No. 56 at 59:6-17. Given Myong Ja Koo's
answers at the deposition, Mr. Siegert also apparently did
not review these documents with her before her deposition.
the hearing on the present motion, this Court ordered Defense
Counsel to go over the documents with Myong Ja Koo to confirm
her responses. In a preliminary ruling, this Court stated
that Mr. Siegert would be sanctioned if the re-signed
responses differed from the initial ones. Dkt No. 56 at
78:6-14. Defendants complied with that order and served
opposing counsel with resigned responses that do not differ
from the originals. Dkt. No. 52 at 1.
Monthly Pay Record Summary Documents.
to the instant motion, Plaintiffs learned during Patricia
Koo's 30(b)(6) deposition that some of the records of
payment produced during discovery-the “monthly
sheets”-were in fact prepared after the commencement of
this litigation in order to summarize relevant business
records. Dkt. No. 46-12 at 50:14-23. Defendants maintained in
their opposition to the motion for sanctions that the
summaries were produced after Plaintiffs asked for
clarification of the initial business records that were
produced on August 29, 2016. See Dkt. No. 47 at 3-4.
Defendants stood by this representation in the motion hearing
before this Court. See generally Dkt. No. 56.
However, Mr. Siegert did not arrive at the hearing prepared
with his own records to corroborate his version of events.
See Dkt. No. 56 at 21:17-20. Thus, this Court asked
that Mr. Siegert submit additional information to support his
reviewing his records, Mr. Siegert now admits that he did
produce the summaries along with the original records all at
once on August 29, 2016. Dkt. No. 52 at 3-5. It has also
become apparent that Defendants did not, at any time,
indicate to Plaintiffs that the monthly sheets were summaries
of the contemporaneously kept records. In fact, it appears
that Defendants may have affirmatively misled Plaintiffs to
believe that the monthly sheets were contemporaneous records;
in response to requests to admit that Defendants lacked
overtime records, Defendants denied the request stating that
overtime records were produced in response to discovery
demands. See Dkt. No. 54 at 2; see also
Dkt. No. 54-2 at 2-3.